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State Laws Create Obstacles to End-of-Life Planning, Study Finds

January 21st, 2011

Despite well-publicized cases like that of Terri Schiavo, most Americans still do not have "advance directives" that give caregivers instructions on the kind of care they would like to receive should they become terminally ill or permanently unconscious.

This should not be a surprise, according to a new study published in the January 17, 2011, issue of the Annals of Internal Medicine by researchers who looked at advance directive laws nationwide. Each state has its own laws on advance directives, but the researchers found that all states erect barriers that make it difficult or impossible for individuals -- particularly the isolated elderly and terminally ill -- to complete advance directives.

Hale Ball Carlson Baumgartner Murphy PLC

Jean Galloway Ball is certified in Elder Law by the National Elder Law Foundation. She is a 1977 honors graduate of the National Law Center, George Washington University, and she did her undergraduate work at the University of California at Berkeley, graduating Phi Beta Kappa in 1971.
She is admitted to practice in Vir...

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Felinton Elder Law & Estate Planning Centers

Mindy Felinton concentrates in the areas of Medicaid planning, Veterans' Benefits, asset protection, nursing home planning, elder law, wills, estate planning, trusts, living wills, powers of attorney, probate administration and trust administration and began her legal career 30 years ago as an Assistant State Attorney...

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For Jeffrey Hammond, the practice of Elder Law is personal. Jeff’s many years of experience in law and in business did not prepare him for the crisis he faced in 2005 and 2006 when his father suffered a stroke and both of his parents suffered from dementia and other medical problems. At that time, Jeff began an i...

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"Advance directives" is an umbrella term for documents that allow individuals to communicate their end-of-life wishes if they are unable to do so themselves. Also known as medical directives, these documents typically include a "living will" that gives instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state, and the designation of a health care proxy (also called a health care power of attorney), someone to speak on the individual's behalf and ensure that her wishes will be carried out.

The researchers also found that 35 states do not allow oral advance directives and 48 states require witness signatures, a notary public, or both. Both restrictions effectively guarantee that many isolated elderly individuals will not let their end-of-life wishes be known, they note. And the only people some terminally ill patients trust are health providers and social workers, but state laws ban such individuals from serving as health care proxies.

In addition, many gay or unmarried patients may be without legally valid people they can turn to as health care decision makers. Forty states do not allow same-sex or domestic partners to be the default health care proxy if an individual hasn't chosen one, as would be the case for heterosexual spouses.